Administrative seizures on the increase

The federal government can not only take your property without charging you with a crime - it can do so without going to court.

Using a method called "administrative forfeiture," federal law-enforcement agencies can seize property, with or without an arrest, with no court hearing.

Such seizures shift the burden of proof to the owners, who must show innocence of wrongdoing in order to have a chance to recover any of their assets. Forty-six percent of the 84,189 publicly identified forfeiture cases handled by 10 federal agencies reporting through the Justice Department in 2009-2012 were handled in administrative proceedings conducted by the seizing agency itself, without the oversight of a judge or fact-finding in a courtroom. The remainder of the seizures took place in civil or criminal proceedings.

The total number of administrative forfeitures is unknown, but even larger. Four agencies with seizure powers have not yet produced data requested by Hearst Newspapers under the Freedom of Information Act. Even in the identified cases, details such as the circumstances and justification for seizures are invisible to the public.

In only a relative handful of cases do victims successfully fight back.

Virginia State Police seized $28,000 in cash from Victor Guzman during a routine traffic stop on I-95 near Emporia, Va., in 2001. The church secretary was driving with his brother-in-law, Jose Jeronimo Sorto, to ferry the cash, donated by churchgoers, to Atlanta to buy land for a new house of worship in El Salvador.

The trooper never charged the men with a crime. But he turned the cash over to the U.S. Immigration and Customs Enforcement on the suspicion it was drug money.

Guzman only won return of the churchgoers' donations after a protracted legal struggle.

Former U.S. Attorney Joseph diGenova, who led 400 federal prosecutors in the District of Columbia during the Reagan administration, says he has "become very concerned" by the growing number of seizures achieved through administrative or civil forfeiture.

DiGenova, who prosecuted the Israeli spy Jonathan Pollard and worked on the prosecution of presidential attacker John Hinckley, said he still supports court-ordered forfeitures in criminal cases. "I have no problem with forfeitures following criminal convictions," diGenova said. "The defendant has been found guilty beyond a reasonable doubt in a courtroom."

But the Georgetown-trained lawyer, now in private practice, says there are "lots of seizures by police and federal law enforcement agencies where no crime has been committed."

Adds diGenova: "We're seeing property taken and then get used ... for so-called 'law enforcement purposes.' It's become a very serious problem and my guess is we're headed toward a big case before the Supreme Court."

"Important and useful"

Joe D. Whitley, a former U.S. attorney in Georgia under Presidents Ronald Reagan and George H.W. Bush, was acting associate attorney general under George H.W. Bush and subsequently served as the first general counsel for Department of Homeland Security under President George W. Bush. He says of administrative forfeiture: "There is oversight by the legal offices of the component agencies. Administrative forfeiture is a necessary tool when used appropriately. But every agency has to manage this process. Congress has entrusted the agencies and prosecutors with this extremely important and useful tool. As with anything, there is a chance that something can be used on occasion in a way that was not contemplated. But I do believe on the whole it is a useful tool and delegating these seizures to the agencies is important and useful."

The Institute for Justice, a civil-libertarian law firm, has been one of the loudest voices speaking out against civil and administrative forfeiture.

"After your property is taken, the government will - perhaps - send you a notice letting you know that the burden is on you to try to get your property back," Institute for Justice attorney Scott Bullock wrote in 2011.

"If you do not respond within the right time frame and in the proper manner, law enforcement automatically gets to keep your seized property. But even if you do try to win back your property in court, you will have to wait several months, if not more than a year, to get a hearing. At that hearing you will find yourself in a legal maze where the government holds most of the advantages, and you carry most of the burdens," he concluded.

Congress has increased the value of property that can be seized through administrative procedures from $10,000 to $100,000 in 1984 and $500,000 in 1990.

Stewart Powell currently serves as Washington correspondent for the Houston Chronicle, covering national and international issues that impact Texas including NASA, border security, immigration, homeland security, federal spending and Texas-related issues before the White House and Congress.

He joined the staff of Hearst Newspapers? largest newspaper in 2008 after 21 years with Hearst?s Washington bureau as White House correspondent during the presidencies of George H.W. Bush, Bill Clinton and George W. Bush, and as national security correspondent during the Reagan administration and the first Bush administration.

White House colleagues elected Powell to the board and then the presidency of the White House Correspondents? Association, where he led the press corps during the House impeachment and Senate trial of President Bill Clinton in 1998-1999. Powell abandoned the association?s tradition of having a comedian perform at the annual dinner to arrange for singer Aretha Franklin to perform in 1999 as a symbol of reconciliation two months after the impeachment crisis ended.

Powell joined the White House press corps after covering the Pentagon and U.S. military operations in the Persian Gulf in 1988, Panama in 1989 and Kuwait in 1991. Powell and Hearst colleague Charles J. Lewis developed leads during their wartime assignment in Saudi Arabia and Kuwait in 1991 to write ``Killing Our Own: Friendly Fire in the Persian Gulf War.?? The series of stories exposing the unprecedented scope of accidental battlefield casualties inflicted on Americans by Americans won the 1992 Edgar Allen Poe Award given by the White House Correspondents' Association and the 1992 Headliners Award.

Before joining Hearst Newspapers in Washington in 1987, Powell served as London bureau chief and senior editor for U.S. News and World Report for nine years, reporting from 20 countries in Eastern and Western Europe, and the Middle East, as well as writing cover stories on domestic and foreign affairs while based at the weekly news magazine?s Washington headquarters.

He joined the magazine after working for United Press International in Washington, as state house bureau chief in Massachusetts and as chief political correspondent for the 1976 New Hampshire presidential primary. Powell has covered eight presidential campaigns since 1976. He joined UPI after two years as the city hall reporter for the News Tribune, a suburban daily outside Boston in Waltham, Mass.

Powell graduated from the Hotchkiss School in Lakeville, Conn., in 1964, where he was selected as an American Field Service exchange student to Japan. He subsequently took part in the 1965 voting rights campaign in Selma, Alabama; earned a B.A. in history from Yale in 1968; taught American history in Branford, Conn., public schools and entered Boston University law school in 1969 before withdrawing to embark on a career in journalism in 1970.

He is married to Linda L. Creighton, a former writer and award-winning staff photographer with U.S. News & World Report. The couple has a daughter.